Oliveira-Coutinho v. Frakes

United States District Court, D. Nebraska

May 10, 2017

JOSE OLIVEIRA-COUTINHO, Plaintiff,v.SCOTT FRAKES, Director of Nebraska Dept of Correctional Services, sued in individual & official capacities, BRIAN GAGE, Warden of Tecumseh State Correctional Institution, sued in individual & official capacities, PATTI HUGHES, Legal Coordinator TSCI Librarian for Tecumseh State Correctional Institution, sued in individual & official capacities, BRAD HANSEN, Warden of Tecumseh State Correctional Institution, in his individual and official capacities, SCOTT BUSBOOM, Deputy Warden of Tecumseh State Correctional Institution, in his individual and official capacities, and APRIL BULLING-JUNE, Associate Warden of Tecumseh State Correctional Institution, in her individual and official capacities, Defendants.

MEMORANDUM AND ORDER

Richard G. Kopf Senior United States District Judge

After
consideration of Plaintiff's complaint and amended
complaint (Filings 1 & 17-1) as part of the court's
initial review of Plaintiff's 42 U.S.C. § 1983
claims under 28 U.S.C. §§ 1915(e) and 1915A, the
court determined that Plaintiff's “allegations,
liberally construed, plausibly suggest that the
defendants' library policies impeded his constitutional
right to access the courts in order to timely file a direct
appeal from his three first-degree murder convictions and to
file a postconviction motion based on actual
innocence.” (Filing 14 at CM/ECF p. 5.) Accordingly,
this matter proceeded to service of process as to
Plaintiff's access-to-the-courts claim for money damages
against the defendants in their individual capacities, and
against the same defendants in their official capacities for
prospective injunctive relief only. (Filing 24 at CM/ECF p.
6.) The defendants have now filed a motion to dismiss.
(Filing 29.)

I.
PLAINTIFF'S COMPLAINTS

Plaintiff
alleges that he is serving consecutive life sentences for
three first-degree murders, of which he claims to be
innocent. (Filing 1 at CM/ECF p. 4.) Plaintiff-a
native of Brazil who speaks Portuguese and does not
understand Spanish or English well-claims that the defendants
are, and have been, violating his First Amendment rights to
access the courts because:

■ The Tecumseh State Correctional Institution
(“TSCI”), where Plaintiff is an inmate, does not
have Portuguese legal materials.

■ Plaintiff's prison legal aide does not have legal
training; the aide speaks Spanish, but not Portuguese; and
prison policy prohibits both the aide and other prisoners
from doing Plaintiff's legal research and writing for
him.

■ Plaintiff was only allowed one hour of law-library
time per week from June 1 to November 1, 2015, and is now
receiving three hours per week.

Plaintiff
asserts that these deficiencies caused him to miss the
December 7, 2015, deadline for filing a writ of certiorari
(his “appeal claim”). While Plaintiff's
complaints also state that he feared he would be unable to
timely file a postconviction motion raising actual innocence
unless he was afforded help from qualified and trained legal
aides and other prisoners, access to sufficient legal
materials, and more time in the law library, Plaintiff now
represents that he has succeeded in filing a timely motion
for postconviction relief in state court (his
“postconviction claim”). (Filing 1 at CM/ECF p.
5; Filing 33 at CM/ECF p. 12.)

Plaintiff
requests $5 million in damages, as well as a preliminary
injunction to provide “adequate law library access
and/or legal counsel for postconviction.” (Filing 1 at
CM/ECF p. 6.)

II.
DEFENDANTS' MOTION TO DISMISS

The
defendants, in their individual capacities only, move to
dismiss Plaintiff's claims against them pursuant to
Fed.R.Civ.P. 12(b)(6) because Plaintiff has failed to allege
“actual injury”-that is, an arguable,
nonfrivolous legal claim that has been frustrated or impeded
by the defendants. (Filing 29; Filing 30 at CM/ECF pp. 5-6.)

As to
Plaintiff's “appeal claim, ” Defendants argue
that Plaintiff “fails to identify what arguments he
would have raised in that petition for writ of certiorari,
fails to assert that any of the claims he would have asserted
in his petition for writ of certiorari were claims for which
the U.S. Supreme Court would arguably have granted
certiorari, and fails to describe whether those were claims
for which the U.S. Supreme Court would have or could have
granted relief.” (Filing 30 at CM/ECF pp. 8-9.)
Defendants also assert that Plaintiff's
“postconviction claim” “cannot meet the
nonfrivolous test for an access to the courts claim.”
(Filing 30 at CM/ECF p. 9.)

In
response to the defendants' motion to dismiss, Plaintiff
additionally alleges that his writ of certiorari (had he been
allowed to file one in a timely fashion) would have raised
“violations of Batson v. Kentucky and Sixth Amendment
and Fourteenth Amendment, ” as well as violations of
the Fourth and Fifth Amendments relevant to a motion to
suppress and deportation of witnesses. Plaintiff also would
have raised a “violation” of “Daubert
v. Merrell Dow Pharmaceuticals and Schafersmas v. Agland
Coop.” (Filing 33 at CM/ECF pp. 6-7.) Plaintiff
further argues that he “should not be required to
demonstrate injury” because such injury may be presumed
when an inmate is deprived of access to all legal materials.
(Filing 33 at CM/ECF p. 8.)

Contrary
to his complaints, Plaintiff's brief in opposition to the
defendants' motion to dismiss states that he actually
“did timely file[] a State postconviction motion,
” but he believes it to be “frivolous and
incomplete” with a “probability of being
unsuccessful” as a result of ...

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